In their article in September 2017, Nicholas Ellery (Partner), Rosemary Roach (Consultant) & Ronan Boothman (Lawyer) of Corrs Chambers Westgarth (Corrs) foreshadowed that employers in Western Australia (WA) need to prepare for the introduction of harmonised Work Health and Safety (WHS) legislation. The reform process is now gathering momentum.

Over the coming months, it will be critical for WA employers to understand what these changes will mean for their business and to ensure they are ready for the introduction of the new laws. Below, we provide an up-to-date summary of various WHS reforms.

WA WHS reform: Where is it at?

In mid-2017, the McGowan Government formed the Ministerial Advisory Panel (MAP), to advise on the content of the proposed WHS Bill, to be based on the national model WHS Act. The MAP was Chaired by Stephanie Mayman, the Chair of the Commission for Occupational Safety and Health, and included representatives from government, industry bodies and unions.

The MAP has now completed its review into the WHS Bill and presented its report, which included 44 recommendations, to the Hon. Bill Johnston, Minister for Mines and Petroleum, Commerce and Industrial Relations (Minister Johnston).

Minster Johnston released the recommendations of the MAP on 30 June 2018. A copy of the report can be viewed here. The MAP has proposed largely technical and administrative changes, and various refinements and improvements. It has not sought to substantially alter the national model WHS Act.

The next stage of the process will be a two-month public consultation period. Following the public consultation process, the WHS Bill will be finalised in order to be tabled in Parliament. As most of the WHS Bill is expected to simply be a replica of the existing national Model WHS Act, the drafting process could be relatively quick. Once this is complete, the WHS Bill will be introduced into Parliament, either later this year or sometime in 2019.

While the MAP has not suggested substantial changes to the national model WHS Act, some of the recommendations which are likely to generate debate include:

Right of entry for union representatives. The MAP has recommended adopting the national model WHS Act, as it relates to union right of entry, with only minor modifications. In effect, unions would continue to have the right to enter any workplace, where employees who may be members of the union are working, without advance notice for the purpose of investigating alleged safety breaches.

Increased powers for Inspectors. The MAP has recommended modifying the power of inspectors to require production of documents and answers to questions without the prerequisite of physical entry to a workplace. The MAP has also recommended clarifying that inspectors have the power to record interviews without consent, after having given notice that recording is taking place.

Right for unions to initiate prosecutions for civil remedy provisions. The national model WHS Act only permits the Regulator (or an inspector authorised by the Regulator) to initiate proceedings for a breach of the WHS civil penalty provisions. The MAP has recommended extending this right to a union. The civil penalty provisions relate mainly to right of entry, inspections and related issues.

Increases to penalties

The WA Government has already introduced proposed legislation to significantly increase penalties for breaches of both the existing Occupational Health and Safety Act 1984 (WA) and the Mines Safety and Inspection Act 1994 (WA).

It is anticipated that these changes will take place ahead of the introduction of the WHS Bill, and it appears likely they will remain in place if and when the WHS Bill becomes law. At the time of writing, however, these reforms had not progressed through Parliament.

The proposed penalty increases are significant, in some cases about five or six times the current maximum. A summary of the key proposed penalty increases are as follows:

OFFENCE

MAXIMUM PENALTIES

Organisations/ Body Corporation

Individuals

First

Subsequent

First

Subsequent

Level 4

Gross Negligence causing death or serious harm

$2.7m

$3.5m

$550k and 5 years’ imprisonment

$680k and 5 years’ imprisonment

Level 3

Breach resulting in serious harm or death

$2m

$2.5m

$400k

$500k

Level 2

Breach of duty exposing individual to risk of death or serious harm

$1.5m

$1.8m

$250k

$350k

Level 1

Breach of duty

$450k

$570k

$100k

$120k

Industrial manslaughter laws

While in Opposition, WA Labor had proposed to implement industrial manslaughter laws. Similar laws have been introduced in Queensland and are promised for Victoria. However, it appears unlikely that such laws will be introduced in WA in the foreseeable future, with Minister Johnston recently indicating that ‘the government doesn’t currently have any agenda to pursue legislative changes (about this issue)’.[1]

Four key issues employers should consider

Some of the key changes arising from the introduction of the national model WHS Act that are likely to have an impact on WA businesses are:

The increased responsibilities on boards and senior management to adopt the more onerous ‘due diligence’ standard in their approach to WHS.

The new responsibility to positively engage and consult with other businesses (eg contractors, suppliers, clients) in relation to how WHS is being managed.

The management of union right of entry, and other union powers of inspection, in the context of a safety incident.

New and enhanced powers for workplace safety representatives.

What steps should employers be taking?

Section 27(1) of the model WHS laws outlines the positive duty, that is: ‘an officer must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation’.

Many employers with a national presence may consider that they are familiar with the ‘due diligence’ obligations under the model WHS laws. However, in order for directors and senior managers to demonstrate the discharge of the due diligence obligation, a key component will be demonstrating a sound understanding of the model WHS laws as they apply in WA.

This article first appeared on the Corrs website and has been reproduced with permission.

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